Nolen v. Jackson

United States Court of Appeals,

Eleventh Circuit.

No. 95-8242.

Dan R. NOLEN, Jr., et al., Plaintiffs-Appellees.

v.

Maynard JACKSON, Mayor, Eldrin Bell, John Dotson, Joan Garner,

Joycelyn Fleming, C.T. Padgett, Lt., Rosalind F. Richardson, John

Doe's Numbers 1-10, all of the above in both their individual and

official capacities, and City of Atlanta, William Campbell and

Beverly Harvard, in their official capacities, Defendants-

Appellants.

Jan. 6, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:92-CV-2691-GET), G. Ernest Tidwell,

Chief Judge.

Before BIRCH, BLACK and CARNES, Circuit Judges.

BLACK, Circuit Judge:

Appellants Mayor Maynard Jackson, Eldrin Bell, Lt. C.T.

Padgett, and Rosalind Richardson, as well as the City of Atlanta

challenge the denial of their motion to dismiss or alternatively

motion for judgment as a matter of law. This motion was based in

part on the individual Appellants' assertion of qualified immunity.

For jurisdictional reasons we review only the question of qualified

immunity and hold that qualified immunity should have been granted.

I. BACKGROUND

Appellees include two Atlanta musical entertainment clubs and

their owners, who applied for new liquor licenses in the name of a

new licensee. They were notified sometime around December 31,

1990, that the application would be denied because they had failed

to attach the proper exhibits. Before they were able to remedy the

deficiencies in their application, the tragic drowning death of an

intoxicated, underage college student occurred on January 11, 1991.

Appellees allege that during the Atlanta Police Department's

investigation of this drowning, both before and after the licenses

were formally denied, individual Appellants made statements to the

1

press explicitly or impliedly linking the death to their clubs.

Appellees maintain that shortly after the drowning, Chief Eldrin

Bell appeared before the Licensing Review Board (the Board) for the

purpose of entreating members to close down bars which served

alcohol to minors.

About one year later, on January 22, 1992, Appellees were

provided a hearing before the Board to review the proposed denial

of the licenses. 2 At this hearing, the City of Atlanta presented

evidence that Appellees and their employees had been cited for

various statutory violations.3 The Board permitted Appellees to

present witnesses and evidence as to why their licenses should have

been granted. Nevertheless, in March of 1992, the Board

recommended that the Mayor deny the applications, and in April

1992, Mayor Jackson followed that recommendation.

1

Appellees identify four stigmatizing statements: (1)

Police Chief Bell's statements before the Board in mid-January

1991; (2) City Attorney Hicks' statements at the hearing itself

on January 22, 1992; (3) Investigator Richardson's statements to

the press one month after the hearing, sometime in March of 1992;

and (4) Police Chief Bell's statements to a reporter on June 16,

1992. We make no judgment as to which, if any, of these

statements might be relevant to a constitutional claim. We

simply take the factual allegations as true and construe them in

the light most favorable to Appellees, the nonmoving party.

2

Appellees continued to operate their businesses during this

time pursuant to a court order.

3

These violations allegedly include the sale of alcohol to

minors.

Appellees subsequently filed this 42 U.S.C. § 1983 action

alleging that the City of Atlanta and individual officials acted

under color of state law to deny them a constitutionally protected

right. The essence of their original complaint was the claim that

a government entity had deprived them of their liberty and/or

property interests in the liquor licenses without due process of

law (or at least, with insufficient or defective procedural due

process in the form of the Board hearing), while simultaneously

stigmatizing them by making defamatory statements to the press.4

Individual Appellants moved for summary judgment on the basis of

qualified immunity, and the district court dismissed their motion

as a discovery sanction.

At the pretrial conference, Appellees abandoned the argument

that the hearing was constitutionally insufficient.5 In response

to the changes in the case as originally plead, Appellants filed a

motion to dismiss or alternatively motion for judgment as a matter

of law in which they again asserted that the individual Appellants

are entitled to qualified immunity. They now appeal the denial of

that motion.

4

For the purpose of this discussion we assume, without

deciding, that Appellees possessed some sort of liberty or

property interest in the liquor licences.

5

The pretrial conference was not recorded, but the parties

agree on the substance of what transpired. The court's order

reflects this change in the pleadings; the court dismissed

Appellees' claim that the Board hearing had been unfair and

specifically noted that "the court ruled orally that plaintiffs

cannot raise issues at trial which plaintiffs agreed to dismiss

at the pretrial conference." As stated in the appellate brief,

"Appellees are merely choosing not to litigate the unlawfulness

of the revocation." When asked at oral argument, Appellees again

conceded that they no longer intend to argue that the licenses

were illegally denied.

II. JURISDICTION

This Court has jurisdiction to review the denial of qualified

immunity as an appealable final decision under Mitchell v. Forsyth,

472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). 6

Appellants raise other issues and urge us to reach the merits of

other claims logically related to the qualified immunity issue.

However, we have no jurisdiction to reach the issues raised by the

City of Atlanta because Swint v. Chambers, --- U.S. ----, ----, 115

S.Ct. 1203, 1206, 131 L.Ed.2d 60 (1995), held that we have no

pendent party appellate jurisdiction. See also Pickens v.

Hollowell, 59 F.3d 1203, 1207 (11th Cir.1995). Furthermore, the

existence of pendent issue appellate jurisdiction is uncertain in

the wake of Swint. To the extent this Court has the discretion to

exercise such jurisdiction, we decline to do so. See Swint, ---

U.S. at ----, 115 S.Ct. at 1212; Pickens, 59 F.3d at 1207.7 As a

result, we consider only the qualified immunity issue and dismiss

the appeal with respect to all other parties and issues.

III. STANDARD OF REVIEW

We review questions of law, such as a motion to dismiss or a

motion for judgment as a matter of law, de novo. Isenbergh v.

Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 439 (11th

6

We reject without discussion Appellees' argument that the

motion to dismiss or alternatively motion for judgment as a

matter of law was not timely.

7

Appellants assert that we have jurisdiction based on the

district court's certification of its order for appeal under 28

U.S.C. § 1292(b). However, Appellants' failure to file the

application for leave to appeal within ten days of the

certification order resulted in denial of that application. Fed.

R.App. P. 5(a).

Cir.1996) (motion for judgment as a matter of law); Fortner v.

Thomas, 983 F.2d 1024, 1028 (11th Cir.1993) (motion to dismiss).

In considering a defendant's motion to dismiss or for judgment as

a matter of law based on qualified immunity, the district court

must examine the complaint to determine "whether, under the most

favorable version of the facts alleged, defendant's actions violate

clearly established law." Bennett v. Parker, 898 F.2d 1530, 1535

n. 2 (11th Cir.1990) (Tjoflat, C.J., concurring), cert. denied, 498

U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991).

IV. DISCUSSION

The issue of whether qualified immunity should be granted in

this case turns on the question of whether Appellees' case, as

ultimately plead, was sufficient to strip the individual Appellants

of qualified immunity. "[G]overnment officials performing

discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This

Circuit has set out the two circumstances under which a defendant

may be entitled to qualified immunity, the first of which applies

to this case:

[T]he defendant is entitled to dismissal when the plaintiff

has failed to allege a violation of a clearly established

right.... In this first instance, it is the plaintiff's

allegations that determine whether the defendant is entitled

to immunity because (as with all motions for judgment on the

complaint or pleadings) the plaintiff's factual allegations

are taken as true.

Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir.1990); see also

Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114

L.Ed.2d 277 (1991) (holding threshold question in a qualified

immunity claim is whether a violation of a clearly established

constitutional right has occurred); Lassiter v. Alabama A & M

Univ., Bd. of Trustees, 28 F.3d 1146, 1149-51 (11th Cir.1994) (en

banc) (summarizing Eleventh Circuit law on qualified immunity).

Accordingly, we first examine Appellees' allegations to

determine whether, if true, they would constitute a violation of

clearly established law. The original complaint alleged that the

City of Atlanta and its employees "deprived these Plaintiffs of

their constitutionally protected liberty interest by denying their

applications for liquor licenses while stigmatizing the

Plaintiffs." Appellees also alleged procedural deficiencies in the

License Review Board hearing.

Appellees have now abandoned the claim that the hearing was

procedurally inadequate or defective. Thus, the relevant question

is whether, in 1992, the law was clearly established, such that a

reasonable city official would have known, that an official

violated a constitutionally protected liberty or property interest

when he lawfully denied an application for a liquor license, when

he provided the applicant with adequate procedural due process, and

when he simultaneously made or adopted allegedly defamatory

statements about the applicant.

In support of their position that such a cause of action was

clearly established, Appellees cite case law involving the

so-called "stigma plus" doctrine. This doctrine provides a due

process remedy where a plaintiff has been deprived of a liberty or

property interest without due process of law and where related

defamatory statements were made. None of the cases they cite

recognizes a cause of action for a deprivation and accompanying

defamatory stigma in which a constitutionally adequate review

procedure was provided. See Paul v. Davis, 424 U.S. 693, 708-09,

96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976) (holding that a man

publicly accused of shoplifting suffered no constitutional

deprivation when he was warned but not fired from his job because

"it was the alteration of legal status which, combined with the

injury resulting from the defamation, justified the invocation of

procedural safeguards"); Wisconsin v. Constantineau, 400 U.S. 433,

437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) (holding

unconstitutional a statute allowing the posting of lists of people

to whom merchants could not sell alcohol because "[w]here a

person's good name, reputation, honor, or integrity is at stake

because of what the government is doing to him, notice and an

opportunity to be heard are essential"); Lassiter v. Alabama A &

M Univ., Bd. of Trustees, 28 F.3d 1146, 1149-52 (11th Cir.1994) (en

banc) (holding that the law was not clearly established that a

plaintiff had a property interest in his particular job at the time

he was fired without a hearing); Von Stein v. Brescher, 904 F.2d

572, 580-81, 584 (11th Cir.1990) (holding that where a police

officer effected an arguably lawful arrest for which there was

arguable probable cause and although the officer made defamatory

statements to the media at the time of the arrest, the plaintiff

did not make out a federal cause of action because the officer's

statements did not extinguish or significantly alter any right

guaranteed to the plaintiff); Howe v. Baker, 796 F.2d 1355, 1358-

59 (11th Cir.1986) (holding that there was no violation of clearly

established law when the city failed to afford a police officer a

hearing prior to his suspension and transfer because the employment

was not terminated and plaintiff's legal status did not change);

Clemons v. Dougherty County, 684 F.2d 1365, 1370-71 (11th Cir.1982)

(explaining that the "stigma plus" cause of action requires that a

plaintiff plead three elements: deprivation of some previously

recognized right or change in legal status, stigmatization, and the

denial of due process); Dennis v. S & S Consol. Rural High Sch.

Dist., 577 F.2d 338, 344 (5th Cir.1978) (holding that the remedy

for this type of constitutional violation is to provide a hearing

in which the plaintiff has an opportunity to clear his name).

V. CONCLUSION

We have not discovered, nor have Appellees presented, any

support for the position that a reasonable public official should

have been aware that the conduct alleged in this case constituted

a violation of clearly established law. Accordingly, we reverse

the district court's denial of Appellants' motion to dismiss on

grounds of qualified immunity and dismiss this appeal as to all

other parties and issues.

REVERSED and REMANDED.